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Thursday, 6 April 2017

Whether accused can be acquitted on ground of defective investigation?

The evidence of this prosecution witness is seriously challenged by the learned counsel for the appellant that there is no panchanama available on record of this proceeding. True it is that there is no panchanama on record. Preparation of the panchanama was not the job of this scientific personnel. It was the job of the investigating agency, the Police. Soyaskar (PW 15), P.S.I. gives explanation that he cannot assign any reason as to why he has not prepared any panchanama. Thus, it will be a lapse on the part of the investigating machinery. Even, it could be turned as a major lapse. The question is whether in view of this lapse on the part of the police, the evidence of the scientific personnel and his effort to substantiate the prosecution case should be thrown in dust-bin? In our view, the answer is ' no'.

The Apex Court in Karnel Singh..vs.. State of Madhya Pradesh, reported in MANU/SC/0497/1995 : 1995 CRI.L.J. 4173 has ruled that in cases of the defective investigation the Court has to circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing in to the hands of the Investigating Officer if the investigation is designedly defective. The same view is reiterated by the Apex Court in the authoritative pronouncement reported in MANU/SC/0203/2004 : 2004 CRI.L.J. 1807 (Dhanaj Singh @ Shera and ors...vs.. State of Punjab).

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal No. 431 of 2014

Decided On: 08.08.2016

Paramjitsingh

Vs.

The State of Maharashtra

Hon'ble Judges/Coram:

B.R. Gavai and V.M. Deshpande, JJ.

Citation: 2017 ALLMR (CRI)1079

1. The appellant, being aggrieved by the judgment and order of conviction passed by Additional Sessions Judge - 10, Nagpur, in Sessions Trial No. 312 of 2012 is before this Court.

2. The appellant and his mother Smt. Amarjit Kaur were charged by the learned Court below for the offence punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code. By the impugned judgment the Court below acquitted mother of the appellant of both the charges. However, the appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code and was directed to suffer rigorous imprisonment for life and to pay a fine of Rs. 2000/- and in default of payment of fine to suffer further rigorous imprisonment for six months. In addition to the said conviction, the appellant was also convicted for the offence punishable under Section 201 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/- and in default of payment of fine to suffer rigorous imprisonment for two months. The Court below directed that substantiative sentences of imprisonment shall run concurrently.

FACTS OF THE CASE:--

3. The prosecution case, as it was unfurled during the course of the trial, can conveniently be stated as under:--

"(A) Police Inspector Chakshupal Mahadeo Bahadure (PW 18), on 24th of August, 2011 was discharging duties as a Senior Police Inspector, Gittikhadan Police Station, Nagpur. At 7.30 a.m., on the said day, a telephonic information was received from a unknown person in the Police Station. The information was in respect of lying of one bag containing something, in between Gorewada Ring Road to Katol Naka Chowk. The said information was noted down by Police Sub-inspector D.S. Dolare in the Station Diary and then he proceeded to the spot. From the spot, PSI Dolare gave telephonic information about the bag to Police Inspector Bahadure (PW 18) and therefore he proceeded to the said spot.

(B) On reaching to the spot, Police Inspector Bahadure found that the dead body of a person was inside the cotton bag of blue colour which was tied by a lace. PSI Dolare called two panchas and prepared panchanama of the said bag. The bag was opened in presence of panchas. The bag was lying at a distance of 20 to 25 ft. from Gorewada Ring Road to Katol Naka Chowk. The spot was surrounded by jungle. After opening the bag it was noticed that the dead body was of a male person aged about 30 to 32 years. His clothes were stained with blood. The legs of the said person were tied to his neck with a cotton string. Due to the hair-style, the police party was of the opinion that the body must be of a Sikh The clothes were checked. One Cell phone was found in the pocket of the pant. PSI Dolare then dialed the number from said Mobile. It was noticed that the deceased was handicapped. Several persons gathered on the spot. From the said gathering one Pritam Baitule, resident of Chalks Colony identified the dead body to be of one Jagmitsingh @ Goldi Marwa.

(C) Spot panchanama was prepared. Simple as well as blood smeared soil was also seized from the spot. Mobile phone of Samsung Company was also seized. The spot panchanama is at Exh. 41. Thereafter, dead body was sent to Mayo Hospital for postmortem. Inquest was conducted at Mayo Hospital. Inquest panchaama is at Exh. 54.

(D) At 9.00 a.m. Harvindar Indarjitsingh Marwa (PW 1), the brother of the deceased, came to the Police Station and lodged his report with PSI Soyaskar (PW 15). The report was reduced into writing by PSI Soyaskar. The oral report is at Exh. 44. On the basis of the report, PSI Soyaskar registered a Crime for the offence punishable under Sections 302, 201 of the Indian Penal Code against the unknown person vide C.R. No. 258 of 2011. The printed FIR is at Exh. 45. After registration of the crime, PSI Soyaskar handed over investigation to Senior Police Inspector Bahadure (PW 18).

(E) As per oral report (Exh. 44) the deceased was elder to the first informant. Deceased, his parents and the first informant used to reside at Lashkaribag, which falls within the jurisdiction of Police Station Panchpawali. The first informant Harvindar Marwa runs a Transport Company by name 'Southern Lorry Supply Transport' at Gandhibag. The deceased was working with a Transport Company owned by one Kukku Marwa. The deceased used to leave for his work place at about 10 to 10.15 in the morning and used to return to the house at 9.30 p.m. It was also stated in the First Information Report that the deceased was handicapped person and therefore, he used to use one Moped having four wheels, bearing registration No. MH-31 DJ-2299. Deceased was having two Cell phones, one of Nokia Co. having Sim No. 9823317371 and another of Samsung Co. having Sim No. 9370505020. The First Information Report further states that initially the family used to reside at Plot No. 290, Chalks Colony which falls within the jurisdiction of Jaripatka Police Station. After construction of a new house at Lashkaribag, the family shifted there. The First Information Report further states that the house at Chalks Colony was rented out by the father of the first informant and the deceased, to a person known as 'Kake'.

The First Information Report further states that on 23rd of August, 2011, since till 9.30 p.m. Goldi, the deceased, failed to return to the house therefore the first informant, his father and some of his friends gave a phone call on mobile of Goldi. The mobile of Goldi of Nokia Co. make was switched off, whereas, though the ring was going on the Cell phone of Samsung Co. make, there was no response to the calls. Therefore, the first informant, his father, relatives and friends started making search of Goldi. When they came to the Chalks Colony, they noticed four-wheeler scooter of the deceased. Therefore, enquiry was made. They also went towards their house which was rented out to Kake. It was close from inside. Inspite of call being given, nobody stepped out of the house. Till 4 O'clock in the morning, the search was going on. On 24th of August, 2011 at 6 O'clock the first informant's father had been to the house of his tenant to make enquiry in respect of the deceased. That time Kake informed that deceased had been to him yesterday at 8 O'clock, tea was offered to him, however, he left on his Scooter.

The First Information Report further states that on 24th of August, 2011 a phone call was received from Gittikhadan Police Station informing that a dead body having one mobile in which a phone number of the mother of the first informant was there and therefore, on the said number, the call was made from the Gittikhadan Police Station. Therefore, the first informant, his father and other relatives reached to the spot and found that the dead body was of his brother. With this, the First Information Report was lodged.

(F) On being entrusted with the investigation, Police Inspector Bahadure (PW 18) got a lead that last location of the vehicle of the deceased was at Chalks Colony. Therefore, he went to Chalks Colony. He recorded statements of some witnesses. After recording the statement of witnesses it was transpired that they had seen the appellant on 23rd of August, 2011 at about 9 p.m. carrying a bundle (Gathode) on the foot panel of his vehicle. After recording the statement of the witnesses in the Police Station, Police Inspector Bahadure again went to Chalks Colony. He called two panchas. He told those witnesses that he is suspecting the appellant and therefore, he intends to take search of his house in their presence. Those panch witnesses are Vinod Patel and Soloman Chandekar (PW 7). The appellant was standing in front of his house. Police Inspector Bahadure informed him that he wishes to take search of his house and the reason for the search. Police Inspector Bahadure also offered the appellant that whether he wishes to take the personal search of Police Party and the panchas, to which the appellant declined. The appellant also agreed that his house can be searched and therefore Police Inspector Bahadure proceeded to take search of the house of the appellant. The house is having courtyard with a compound wall. When the police party along with panch entered in the drawing room of the house, they noticed stains like blood on the wall beside the door at the distance of about one foot from the ground. Police Inspector took scrap of the stains as a sample on a paper. He also collected plain sample from the said wall. Then searching party went inside the another room. It was a bed room. Nothing objectionable was noticed there. When they entered the third room, which was a hall, admeasuring 13 x 15 sq.ft., they noticed a Diwan in the south-east corner having foam mattress which was covered with a bed sheet. Blood stains were noticed on the bed sheet. On the mattress also blood stains were noticed. Police Inspector Bahadure then cut the portion of the mattress for sample over which the stains like blood were found. Also, he cut the portion of said mattress for sample, having no blood stains. Thereafter, in Kitchen nothing was noticed objectionable. Then, the searching party went to the washing place. Four pieces of two clothes were noticed on the iron grill which were used for mopping. Those clothes were stained with blood. The same were seized. The house was having compound on back side also. One dustbin was found containing three empty bottles of liquor. Those bottles were also seized. The Investigating Officer found one cotton string on the iron grill. It was taken into possession by him because the string used for tying the legs of deceased and the string found on the grills were appearing to be of the same material. The Investigating Officer seized all these articles in presence of panchas and were sealed by affixing the seals. He also prepared house search seizure panchanama (Exh. 70).

(G) The Investigating Officer then took all seized properties along with the appellant to the Police Station. The properties were subsequently deposited in the property room of the Police Station. On the same day, clothes of the deceased from Mayo Hospital were brought in a sealed packet. Those were seized under panchanama (Exh. 100).

(H) On 24th of August, 2011 itself, the appellant while in police custody made a disclosure statement and agreed to show the vehicle Mahindra Rodio. Accordingly, his statement was recorded in presence of panchas. The admissible portion is at Exh. 71. Consequent thereto, the Investigating Officer, panchas and the other police staff proceeded to the spot in a police Jeep as per the direction of the appellant. The appellant suggested the driver of the jeep to take the Jeep via Gittikhadan Chowk, Borgaon Chowk, Gorewada Ring Road towards Katol Naka Chowk. While the jeep was proceeding towards Katol Naka Chowk along Gorewada Ring Road, appellant asked the driver of the Jeep to stop the vehicle near the board over which "Khabardar" was written. All inmates of the Jeep were got down. Appellant proceeded towards Nala. He was followed by the police party. He went near a pit and pointed out the vehicle Mahindra Rodio. The Police staff taken out the said vehicle from the pit and brought it on the road near the Jeep. It was about 19.40 hrs. Stains like blood were noticed on the foot panel of the said vehicle in the light of Jeep. Recovery panchanama (Exh. 72) was drawn.

(I) On 25th of August, 2011, Investigating Officer referred the appellant to Mayo Hospital for medical examination. He was medically examined. No injuries were noticed on his person.

(J) On 25th of August, 2011 itself Investigating Officer, Police Inspector Bahadure directed PSI Soyaskar (PW 15) to get the spot of incident and the seized vehicle inspected with the assistance of Chemical Analyzer. The Investigating Officer also issued a requisition letter (Exh. 104) to the Deputy Director, Regional Forensic Laboratory, Nagpur to that effect. He also called a photographer from "Durgesh Photo Studio" for video recording of the proceedings at the spot of incident and the proceedings at the time of examination of the vehicle. He sent PSI Soyaskar to the spot with the photographer along with video Camera.

(K) The requisition letter (Exh. 104) was taken to the office of the Deputy Director of Regional Forensic Laboratory, Nagpur by PW 15 Soyaskar. The Deputy Director deputed three employees of his office for the spot inspection and for examination of the vehicle and also for collection of the samples. PSI Soyaskar took those employees to the house of the appellant at Chalks Colony, Nagpur. The personnel from the Regional Forensic Laboratory took samples of the blood stains found on the wall of the rooms and also from toilet, bath room and washing place. They examined those samples and noticed that blood was there. The samples were handed over by them to PSI Soyaskar. Thereafter, PSI Soyaskar returned to the Police Station along with the team of Chemical Analysers where the vehicle of the appellant was examined by the Chemical Analyzers' Team. Blood stains were noticed on the foot panel and also the down side of the foot panel. The Chemical Analyzers' Team took samples of those blood stains and they received positive reports of the blood samples. Those samples were packed and handed over to PSI Soyaskar. PSI Soyaskar thereafter handed over the sample to Investigating Officer Bahadure. A Sana entry in respect of all these were taken in the Station Diary and it is at Exh. 116.

(L) On 25th of August, 2011, the appellant showed his willingness to give statement, therefore Investigating Officer called two panchas. In police statement, he agreed to show the place where he concealed the wooden stick and the gold articles of the deceased in almirah of his house. Accordingly, the memorandum panchanama (Exh. 73) was drawn.

Consequent thereto police party along with panchas and the appellant went to the house of the appellant. From his house, the appellant produced a wooden stick from over the loft which was on east-south corner of the wall. He also opened a almirah and took out the gold ornaments from the heap of the clothes. The same were seized under seizure memo (Exh. 74). The Investigating Officer also recorded statement of witnesses on 27th of August, 2011 and 28th of August, 2011.

On 29th of August, 2011, the Investigating Officer arrested the mother of the appellant since during the course of the investigation it was transpired that she had caused disappearance of evidence of murder of Goldi. During Police Custody Remand, her disclosure statement was recorded and consequent thereto, her blood stained clothes were seized under recovery panchanama (Exh. 91). The muddemal articles were sent to the Chemical Analyser and after completion of investigation Charge-sheet was filed against the appellant and his mother.

(M) Learned Magistrate, in whose Court the final report was presented, found that the case is exclusively triable by the Court of Sessions, therefore, he committed the case to the Court of Sessions.

The learned Additional Sessions Judge framed a Charge against the accused persons under Exh. 2. Both of them abjured their guilt and claimed for their trial.

In order to bring home the guilt of the accused persons, the prosecution has examined eighteen witnesses and also relied upon various documents which were duly proved during the course of the trial. After full fledged trial, the learned Additional Sessions Judge, by impugned judgment, though acquitted accused No. 2, the mother of the appellant, convicted the present appellant as observed in opening paragraph of this judgment. Hence, this appeal."

NATURE OF DEATH OF GOLDI.

4. The postmortem report is placed on record at Exh. 118. The postmortem report is admitted by the accused persons during the course of trial. Though the said report was admitted, Dr. Suraj Wankhede (PW 16) was examined by the prosecution. Dr. Wankhede, on 24th of August, 2011, was working as a Lecturer in Indira Gandhi Medical College and Hospital, (Mayo Hospital) Nagpur. This witness has conducted more than 1000 postmortems. When the dead body of Jagmitsingh @ Goldi Indarjitsingh Marwa was received along with requisition letter from Police Station Gittikhadan for postmortem, he and his colleagues Dr. Shrikant Shinde and Dr. N.B. Kumar conducted autopsy over the dead body. The team of the doctors noticed following injuries:--

"(i) Lacerated wound present over occipital region in midline horizontally placed, of size 7 cm. x 1 cm. bone deep, situated 5 cm. above occipital protuberance, left lateral end situated 3 cm. from tip of left mastoid and right lateral end situated 5 cm. from tip of right mastoid 1.5 cm. part of wound is on right side from midline.

Subdural haematoma present over both parieto-occipital region, contains about 80 grams and blood clots, dark red in colour. A defused subarachnoid haemorrhage present all over brain surface as a thin red blood film. Brain was congested. The brain was 1200 grams in weight."

According to the Autopsy Surgeon, Dr. Wankhede, injury Nos. 1 and 2 mentioned in col. No. 17 along with its internal damage mentioned in Col. No. 19 were sufficient in the ordinary course of nature to cause death.

5. This prosecution witness also received a requisition from the Investigating Officer on 16th of September, 2011 along with an object, i.e. wooden stick, for examination and opinion as to whether injuries mentioned in postmortem report could be caused by the said object. The requisition is at Exh. 120. This prosecution witness and his other companion doctors examined the object which was sent to them in a sealed condition. On examination, they noticed that the stick is having 130 cms. length, circumference at one end is 14 cms. and at other end, it is 9.8 cms. having four nodes with inter nodal distance varying from 22 cms. to 29 cms. They also noticed blood stains on the stick. After examination, the doctors gave their opinion (Exh. 121) by which they opined that injury Nos. 1 and 2 mentioned in Col. No. 17 of the postmortem report along with their internal damage mentioned in Col.no.19 are possible with said weapon. This prosecution witness also identified the weapon before the Court when it was shown to him, that it was the same weapon which was sent to him for examination.

In view of the evidence of Dr. Suraj Wankhede, we have no doubt in our mind that the nature of death of Goldi was homicidal one and the stick which was referred to Dr. Wankhede by the Investigating Officer was the weapon which was used in commission of the crime.

6. The consequent question that falls for consideration of this Court is as to whether the appellant could be held responsible for the homicidal death of Goldi.

CRITICAL ANALYSIS OF PROSECUTION CASE.

7. According to the prosecution, it is the appellant who is responsible for the homicidal death of Goldi.

According to the prosecution, Goldi was done to death inside the house where the appellant used to reside as a tenant and thereafter dead body was thrown at a isolated place at Gorewada jungle in a cotton bag. There is no eye witness account in the prosecution case nor we can expect it when, as per the prosecution, the incident has occurred within the four walls of the house. As such, the entire case of the prosecution is based on circumstantial evidence.

8. How to appreciate the case solely based on circumstantial evidence, we have a guiding lamp by way of authoritative pronouncement of the Apex Court in the case of Sharad Birdhichand Sarda..vs.. State of Mah. reported in MANU/SC/0111/1984 : AIR 1984 SC 1622.

9. Deceased Goldi was a handicapped person. He was suffering from post-polio paralysis, as it could be seen from the medical certificate (Exh. 42) issued by the competent authority in that behalf. As per the evidence of Indarjitsingh Marwa (PW 8), the father of the deceased, deceased was paralysed with his legs due to polio since his childhood and he was unable to walk. He used to walk with the help of his hands. This position is admitted by the appellant when this was put to him by way of question No. 11 during recording of his statement under Section 313 of the Code of Criminal Procedure.

The aforesaid evidence thus clearly shows that the deceased was helpless person, in case of any type of attack on him. The evidence thus allows us to draw an inference that there would not have been any resistance on his part in the event of physical assault on him. He was unable to save himself by running away quickly from the spot of the assault.

10. The evidence of Indarjitsingh (PW 8) also shows that a TVS Scooty was purchased for deceased and two additional wheels were fixed to the said Scooty. The registration of the said Scooty was MH-31/DJ-2299 and the deceased used to attend his duty place by the said Scooty. Even this aspect is admitted by the appellant when he was examined by the learned Additional Sessions Judge under Section 313 of the Code of Criminal Procedure.

11. There is no dispute on the part of the appellant during the course of the trial or before this Court that PW 8 Indarjitsingh Marwa, the father of the deceased, was having a house at Chalks Colony, Nagpur and the said was let out to the appellant prior to 7 to 8 months of the incident.

12. The First Information Report (Exh. 44) was lodged by Harvindar Marwa (PW 1), on 24th of August, 2011. The First Information Report was lodged after the dead body of Goldi was identified by him and his family members. According to the First Information Report, on 23rd of August, 2011 Goldi failed to return to the house and therefore, search was made by the first informant and his relatives, including his parents, till late night.

The learned counsel for the appellant Shri R.K. Tiwari submitted that much importance cannot be attached to the First Information Report since, according to him, though Goldi failed to return to the house on 23rd of August, 2011, no missing report was lodged. He, therefore, questioned wisdom of the first informant in remaining silent till the dead body was recovered.

Merely because the missing report was not filed, that by itself, the First Information Report or the evidence of the first informant could not be viewed with suspicion. Different persons react differently to the same situation. On 23rd of August, 2011 when Goldi failed to return to the house, according to the First Information Report and the evidence of first informant Harvindar Marwa (PW 1), he and his father Indarjitsingh (PW 8) made search of Goldi at various places including the Chalks Colony where the appellant was residing as their tenant. The search by them at Chalks Colony is corroborated by Simratpalsingh Subarwal (PW 5). On the said day, the anxiety of the family members of Goldi was to trace out him rather than lodging the report. Further, looking to the fact that Goldi was differently able man, it must have weighed in the mind of his relatives that since he was not having enmity with anybody, nothing harmful to him will be done by anybody. Therefore, in our view, not filing of the missing report on 23rd of August, 2011 has no relevance for deciding the guilt of the appellant.

13. The First Information Report (Exh. 44) was lodged against the unknown person. The evidence of first informant Harvindar Marwa (PW 1) is in conformity with the recitals of the First Information Report.

The evidence of first informant is seriously criticized by the learned counsel for the appellant that the report (Exh. 44) suffers from omissions.

The First Information Report is not an encyclopedia of the prosecution case. The First Information Report is not the last word of the prosecution case rather it is a starting point. By First Information Report, the Criminal Law is set into motion. On the basis of the First Information Report, the Police machinery is set into motion. The Investigating Officer investigates by various angles to book the culprit.

14. Through the First Information Report (Exh. 44), it was reported by the first informant that during search, on 23rd of August, 2011, the first informant and others noticed that the vehicle of Goldi was parked near their house at Chalks Colony which was rented out to the appellant. Therefore, they tried to make inquiry with the appellant, however, there was no response to the various calls given by the first informant and others to the appellant. It is also stated in the First Information Report that on 24th of August, 2011 at 6 O'clock, in the morning, when his father Indarjitsingh Marwa (PW 8) had been to the house of the appellant that time it was revealed to him by the appellant that on 23rd of August, 2011 the deceased had been to his house and when a tea was offered to him, he left the place.

From the aforesaid, as mentioned in the First Information Report, it is clear that the Investigating Officer Bahadure (PW 18) got a lead about the presence of deceased Goldi after his working hours were over at Chalks Colony. Therefore, it was not unusual on his part to visit Chalks Colony for the purpose of investigation. Though this act on the part of the Investigating Officer is seriously questioned by the learned counsel for the appellant, as there was no occasion for him to visit Chalks Colony, in our view, is having hardly any merit.

15. PW 3 Mukesh Pachpulkar and PW 4 Honey Shimpi are the two prosecution witnesses, who were interrogated by the Investigating Officer on 24th of August, 2011. These two witnesses are residents of Chalks Colony. They were interrogated even prior to the appellant being arraigned as an accused in the crime.

Both these prosecution witnesses are known to the appellant. The house of PW 3 Mukesh is situated in the front row of the rented house of the appellant whereas the house of Honey (PW 4) is situated at the distance of 4 to 5 houses from the house of the appellant. Thus, these two prosecution witnesses reside in proximate distance from the house where the appellant was residing as a tenant. Further, there is no challenge to the version of these two prosecution witnesses that they were knowing the appellant.

16. From the evidence of these prosecution witnesses, it is clear that the incident in question has occurred during Ganpati festival. On 23rd of August, 2011, these two prosecution witnesses and others namely; Suraj Thakur, Lucky Sansara and Samit Das were chitchatting at about 9 O'clock in the night on a Ota situated about 50 to 60 ft. away from the house of the appellant. According to the learned counsel for the appellant, the prosecution has not examined Suraj Thakur, Lucky Sansara and Samit Das, who were accompanying these prosecution witnesses in chitchatting. Therefore, the evidence of these prosecution witnesses should be kept aside.

According to these two prosecution witnesses, when they were chitchatting at 9 O'clockon a Ota, that time they noticed appellant coming from his house riding on his Moped, carrying one big bundle which was kept on the foot-rest of the vehicle and he passed them by driving his vehicle in a high speed. According to these two prosecution witnesses, after 20 to 25 minutes they noticed the appellant returning and at that time they could not notice the bundle which the appellant carried on the foot-rest of vehicle. There is due corroboration to this aspect by these two prosecution witnesses to each other. Further, unchallenged evidence of PW 3 Mukesh shows that he saw the appellant in the street light.

The evidence of these two witnesses is seriously challenged by Shri R.K. Tiwari, the learned counsel for the appellant, by describing them as a got-up witnesses. According to him, these two witnesses are purposefully introduced by the Investigating Officer. He further submits that looking to the location, where the dead body was noticed, it is impossible to return to Chalks Colony within a period of 20 to 25 minutes. He also submitted that their evidence mars with the omissions.

17. While appreciating the evidence of these two prosecution witnesses, we cannot forget that their police statements were recorded even prior to the appellant being arraigned as an accused in the crime. At the time of recording of their statements, neither Investigating Officer nor these two prosecution witnesses were having any slightest idea that it is the appellant who has committed the ghastly murder of Goldi. The omissions as sought to be pointed out by the learned counsel for the appellant, in our view, are in the nature of narration.

Though Shri R.K. Tiwari, the learned counsel, seriously challenged the testimony of these two prosecution witnesses that it was impossible for them to notice the return of the appellant within a period of 20 to 25 minutes in view of the location where the dead body was found, in our view, the said submission is meritless in view of the fact, which is brought on record during the cross-examination of Simratpalsingh Subarwal (PW 5). This prosecution witness is also resident of Chalks Colony. He noticed the maternal uncle of Goldi informing him that Goldi has failed to return his house and his vehicle is parked in the Chalks Colony. In the cross-examination of this prosecution witness it is brought on record that on coming to the knowledge of the death of Goldi, this witness had been to see the dead body of the deceased. It would be very useful to refer to the cross-examination of this prosecution witness in order to appreciate the contention of the learned counsel for the appellant that it is not possible to return to the Chalks Colony within a period of 20 to 25 minutes from the spot where the dead body was lying, which reads as under:--

"On coming to know the death of Goldi, I had been to see the dead body of deceased. The said spot was about 10 kms. from our Colony by straight road. I had gone to that spot riding my moped. I might have reached to that spot from our colony within 10 minutes. It is not true to say that one has to take 20 to 30 minutes to reach the spot of incident from our colony. I say that one could reach to the spot of incident within 10 to 15 minutes from our colony."

From the aforesaid, which is brought on record during the cross-examination of prosecution witness, it is crystal clear that one could reach to the Chalks Colony from the spot where the dead body was lying and vice versa, within a period of 20 minutes. Further, we cannot forget the unchallenged version of PW 3 Mukesh that he saw the appellant on a Moped with speed. Further, in the cross-examination of PW 3 Mukesh, it is brought on record that even after the appellant came back from the spot, the prosecution witnesses were on Ota for about 15 minutes.

There is nothing available on record to show that PW 3 Mukesh and PW 4 Honey had any reason to depose against the appellant. Further, the name of the appellant cropped up as a person who sped away on a vehicle with a big cotton bag even prior to he being shown as an accused in the crime. In fact, from the evidence of the Investigating Officer, the police statements of these two prosecution witnesses have raised a suspicion in his mind against the appellant.

From the quality of the evidence of these two prosecution witnesses, we are of the view that their evidence inspires confidence. The version given by them is truthful and cannot be objected on any count. Their evidence clearly shows that on 23rd of August, 2011 at about 9 O'clock, in the night, the appellant left Chalks Colony by Moped and while leaving the Chalks Colony there was a big cotton bag placed on foot-rest of the said vehicle and after 20 to 25 minutes he returned to Chalks Colony albeit without the big cotton bag on the vehicle.

BLOOD FOUND IN THE HOUSE OF APPELLANT.

18. Prosecution heavily relies on the incriminating evidence which was noticed by the Investigating Officer, when he visited house of the appellant, in presence of panch witnesses, and the recoveries of gold ornaments of the deceased and the weapon that was used in commission of the offence, from the house of the appellant on his discovery statement. The prosecution also strongly relies on a circumstance of noticing the blood stains by the scientific team of the Forensic Laboratory of Nagpur when they visited the house of the appellant on 25th of August, 2011, and also the blood stains noticed by them on the Moped Mahindra Rodio recovered at the instance of the appellant.

19. After getting lead from the oral report (Exh. 44) that the last location of the vehicle of the deceased was at Chalks Coloney, the Investigating Officer had been to the Chalks Coloney. The house which was rented out to the appellant is situated at Chalks Coloney having Quarters No. 290. During the investigation at Chalks Coloney, it was transpired to the Investigating Officer that Mukesh Pachpulkar (PW 3) and Honey Shimpi (PW 4) had seen the appellant going hurriedly with a big bundle on the foot-rest of the Moped. After recording of the statement of these prosecution witnesses, the Investigating Officer was having reasonable suspicion in his mind about the complicity of the appellant in the crime and therefore, he decided to search the house of the appellant. Accordingly, he called two panch witnesses, they are; Shri Soloman Chandekar (PW 7) and Shri Vinod Patel.

20. Soloman Chandekar (PW 7) is a resident of the Chalks Coloney itself. On 24th of August, 2011 when he was standing near Budha Vihar of the Chalks Coloney, he was asked by the police, who came in the Coloney for investigation, as to whether he is ready to act as panch. On getting his affirmative nod, the police party took him and another panch with them to the house of the appellant. At the relevant time, appellant was standing infront of his house. The Investigating Officer informed him that he wishes to take search of his house and the reason for the search. The Investigating Officer also asked the appellant that he can take his personal search and the personal search of the police and the panchas which was declined by the appellant. This evidence of the Investigating Officer is duly corroborated by Soloman (PW 7).

21. The panch witness Soloman Chandekar (PW 7) in his evidence has vividly described the entire sequence of the house search of the appellant. When the panch Soloman along with the police entered into the drawing hall of the house of the appellant he noticed blood stains on the wall near the door at the height about 1 ft. from the ground. Blood stains were scrapped by the police and were collected on the plain paper, for sample. Also, the police scrapped the portion of the same wall where there were no blood stains, for the purpose of sample.

Thereafter, they entered into the bed-room. The evidence of Soloman Chandekar shows that nothing objectionable was noticed there. Thereafter, they entered into the hall where one wooden Diwan was kept. Soloman Chandekar and others noticed blood stains on the bed-sheet laid on Diwan. The said bed sheet was seized by the police. The searching party also noticed blood stains on the foam mattress which was laid on the Diwan. According to the evidence of Soloman, police cut the foam of the mattress for sample having blood stains and also the pieces of foam where there was no blood stains.

Thereafter, they entered the kitchen which was adjacent to the said hall but nothing objectionable was noticed in the kitchen. Thereafter, they went towards latrine and bath room. As per the evidence of Soloman Chandekar (PW 7) there was a washing place at latrine and bath room and two mopping clothes were lying there having blood stains. Those were also seized. They also noticed one cotton string on the iron grill to the wall of washing place. According to the Investigating Officer, the said cotton string was seized because string used for tying the legs of the deceased were appearing to be of the same material.

Panch witness Soloman and others also noticed dust-bin containing three small empty bottles of liquor. Those were also seized.

The evidence of the Investigating Officer shows that all the articles, as mentioned above, were duly sealed at the spot itself. The said fact is duly corroborated by Soloman, the panch witness.

A descriptive house search panchanama was also drawn and it is available on record at Exh. 70. The perusal of the said proved document also shows that the articles which are mentioned in the panchanama were duly sealed on the spot itself. Thus, the contemporaneous document also substantiates the version of the panch witness Soloman and Investigating Officer in respect of sealing.

Exh. 70 is also duly signed by the appellant. The perusal of Exh. 70 shows that after the seizure of the incriminating articles the appellant was taken into the custody.

When this incriminating circumstance of house search and seizure of the various articles as mentioned in Exh. 70 were put to the appellant, when he was examined by the learned Judge of the Court below under Section 313 of the Code of Criminal Procedure, the appellant has given a evasive replies "I do not know". This could be seen from his answers which he has given to Question No. 69 to Question No. 74.

22. The evidence of PW 7 Soloman is challenged by the learned counsel for the appellant on the ground that this witness appears to be close to the Investigating Officer. To buttress his submission, the learned counsel submitted that Soloman has also signed the discovery statements (Exh. 71, 72) and consequent recovery and another discovery statement (Exh. 73) and recovery panchanama (Exh. 74).

Soloman is resident of Chalks Coloney where the house of deceased is situated, in which the appellant was residing as tenant. Therefore, the presence of Soloman at Chalks Coloney cannot be doubted. His evidence also shows that he was knowing the appellant. He has also identified the appellant from the witness box.

There is nothing brought on record to show that this prosecution witness is under the thumb of police. Further, there is nothing available on record to show that this prosecution witness was overtly interested in the prosecution of the appellant. As a dutiful citizen, Shri Soloman has acceded to the request of the Investigating Officer to act as panch. Merely because he acted as a panch for two discovery statements made by the appellant subsequently, in our view, he will not lose his character as an independent witness. Further, the evidence of this prosecution witness is free from exaggerations. His evidence would go to show that his deposition in respect of happenings to which he stood as panch witness is natural one. His evidence means to us that he is witness to the truth. His evidence inspires confidence. We, therefore, on the basis of the evidence of Soloman (PW 7) and in view of the fact that the visit to the house of appellant on 24th of August, 2011 is not seriously challenge, can reach to the conclusion that at the time of search of the house of the appellant blood stains were noticed at various places and on various articles and those were seized and sealed by the Investigating Officer in presence of the appellant himself.

23. The appellant has offered his explanation in respect of the blood stains noticed on various articles as mentioned in Exh. 70. He has filed his written statement before the learned Trial Court. The said statement is at Exh. 164. According to the explanation offered, the appellant was suffering from an ailment of nose bleeding since last 8 to 10 years. According to him, due to the same, in a much quantity blood oozes from his nose. He further submits that either on 22nd of August, 2011 or 23rd of August, 2011 when he was taking rest on "Diwan", that time all of a sudden blood started oozing from his nose therefore he immediately got up and proceeded towards bathroom by cleaning the nose with his hand. Thereafter, after cleaning himself he again came to the hall for rest. According to him, it is possible that the blood that was appearing in his house, as mentioned on the various articles in Exh. 70, might be due to his own nose bleeding.

It appears that this particular defence is taken by the appellant since his blood group is also 'B'. In our view, this explanation of the appellant that the blood was his own is not acceptable. Even, according to the appellant, he was suffering from this ailment since last 8 to 10 years. Normally, a person who is suffering since long with such ailment, would take medical help. Nothing is filed on record by the appellant to substantiate his claim about the said ailment.

Alternatively, in the said written explanation the other plea is taken by the appellant is that PW 18, Investigating Officer might have sprinkled the blood in his house. The said was also the submission before this Court on his behalf by the learned counsel for the appellant.

The house of the appellant was searched in presence of PW 7 Soloman Chandekar on 24th of August, 2011. As discussed in preceding paragraphs of this judgment, the evidence of panch Soloman shows that before making search the Investigating Officer offered for the personal search of police party and the panch which was declined by the appellant. Further, the house search was taken in presence of the appellant. As per the arrest panchanama (Exh. 136) the appellant was arrested on 24th of August, 2011 at 18.50 hrs.. The proceedings of house search panchanama were completed at 18.05 hrs. Further, at the time of arrest of the appellant his mother Smt. Amarjit Kaur (acquitted accused) was not arrested. Exh. 137 shows that intimation of his arrest was given to her. She was arrested on 29th of August, 2011. If the Investigating Officer has played mischief in sprinkling the blood on 24th of August, 2011, his mother Amarjit Kaur, who was arrested on 29th of August, 2011, would not have kept quiet and she would have taken certain steps to make a complaint against the Investigating Officer to his higher-ups. In absence of such, we are of the view that the submission and the plea of sprinkling of the blood by the Investigating Officer is required to be rejected. Further, the appellant could not point out anything to show that there was any enmity or the Investigating Officer was nursing any grudge against him.

24. Exh. 98 is the C.A. form along with the requisition, dated 20th of September, 2011 vide which the articles, which were seized under Exh. 70, were sent to C.A. Those articles are mentioned in the C.A. form as B/1 to B/8. Dharmendra Pitale (PW 10) who was attached to Police Station Gittikhadan as Police Constable carried these articles to the Chemical Analyzer. His evidence shows that he received these articles in sealed condition and he deposited the same with Chemical Analyzer in sealed condition. The Chemical Analyser Report (Exh. 7) shows that these articles were received in sealed condition and seals were intact. Thus, it is clear that there was no tampering with the seized articles. The C.A. report (Exh. 7) shows that these articles were received in the sealed condition in the Laboratory. These articles find place in the C.A. report at Sr. No. 4 to Sr. No. 11. The C.A. Report (Exh. 7) shows that blood was detected on Exhs. 4, 6, 7, 9 and 10. The said blood was human blood. According to the C.A. report (Exh. 9), the blood group of deceased Goldi was 'B'. The human blood which was noticed on the aforesaid articles as mentioned above was of Group 'B' as per C.A. report (Exh. 7).

The scientific evidence thus proves that the various articles, which were seized during the house search on 24th of August, 2011 from the house of the appellant, were stained with human blood of group 'B' and said group belongs to the deceased.

25. While conducting autopsy over the dead body of Goldi, Autopsy Surgeon Dr. Suraj Wankhede (PW 16) preserved viscera for chemical analysis and it was handed over to police constable on duty. The Investigating Officer sent the said viscera to the Chemical Analyzer while sending the muddemal under Exh. 98. The C.A. report in respect of the viscera is available on record at Exh. 125. The said report shows that the viscera was containing 117 milligrams and 92 milligrams of alcohol per 100 grams. It is to be noted that during the house search on 24th of August, 2011 the empty liquor bottles were found in a dust-bin which was seized. This also, in our view, provides as one more circumstance against the appellant in the prosecution case.

DISCOVERIES:

26. The another piece of evidence i.e. pressed into service by the prosecution is the discovery statements of the appellant and consequent recoveries thereto.

27. After house search of the appellant's house was over, the Investigating Officer returned to the Police Station along with the appellant. He was arrested.

During the interrogation on 24th of August, 2011, the appellant was ready to give his disclosure statement and therefore, the Investigating Officer called Soloman (PW 7) and other panch witness. The evidence of Soloman shows that he received a telephonic call at around 6.30 p.m. from Gittikhadan Police Station and he was called in the Police Station. Accordingly, as per the evidence of Soloman, he reached to the Police Station and the appellant gave a disclosure statement by which he agreed to show the place where he had concealed the Rodio Moped vehicle. The admissible portion of the statement of the appellant is at Exh. 71. The disclosure panchanama shows that the appellant gave his disclosure statement on 24th of August, 2011 and the panchanama proceedings were started at 18.50 hrs.

Consequent to the said discovery statement, the police party, panch witness and the appellant proceeded to the spot in a police jeep. They reached to the spot as shown by the appellant. The Moped was concealed in a pit. The recovery panchanama is at Exh. 72. Its recitals show that with the help of the accompanying staff, the Investigating Officer brought the said vehicle on road. In the light of the Jeep it was examined and it was brought to the Police Station.

28. Evidence of Soloman Chandekar (PW 7) further discloses that on next day of the recovery of Moped vehicle, i.e. on 25th of August, 2011, he was called again to the Police Station. Accordingly, he and Vinod Patel, the other panch, visited the Police Station. The Investigating Officer informed that the appellant wished to give another disclosure statement by which he was ready to show the place where he had concealed the stick and the gold ornaments and will produce the same. The admissible portion of the disclosure statement of the appellant is at Exh. 73.

Consequent to the said disclosure statement, P.I. Bahadure (PW 18), the Investigating Officer, panch witness Soloman with other panch reached to the house of the appellant. The house of the appellant was locked. The appellant opened the lock with a key then he went to the hall, then he produced one stick from over the loft which was on the corner of the wall. Thereafter, he opened a steel almirah which was there in the hall and he kook out the gold ornaments from the almirah. Those were two gold chains, two gold lockets, two gold rings and the clothes. The clothes were, one Jeans Pant, one black shirt of full sleeves and one handkerchief which was stained with blood. Those articles were seized under the recovery panchanama (Exh. 74).

The stick which was recovered was also sent to the Chemical Analyzer by the Investigating Officer and as per the C.A. report (Exh. 7), the said was stained with human blood of group 'B'.

The recoveries of these articles at the behest of the appellant on his disclosure statements are seriously challenged. According to the learned counsel for the appellant, no value can be attached to the said recoveries because (1) on 24th of August, 2011 when the house of the appellant was thoroughly searched in view of Exh. 70, these articles were not found. (2) there is a possibility of implanting these articles at the behest of the Investigating Officer, (3) the place from where these articles were seized was already known to the Investigating Officer.

29. Evidence of PW 7 Soloman Chandekar shows that after the discovery statement, they proceeded to the house of the appellant. His evidence shows that the appellant produced one stick from over the loft which was on the corner of the wall. What is important to note from his evidence is that the stick was not visible from the floor. Further, according to his evidence, the appellant opened steel almirah and thereafter he took out the gold ornaments from the almirah.

In order to appreciate the contentions raised by the learned counsel for the appellant, we will have to fall-back on the contents of Exh. 70 as well the evidence of Soloman Chandekar (PW 7) in respect of house search on 24th of August, 2011. Exh. 70 and evidence of Soloman Chandekar do not show that on 24th of August, 2011 the almirah was opened either by the Investigating Officer or by anybody. Further, evidence of Soloman Chandekar in respect of the proceedings of 24th of August, 2011 does not show that the searching party could notice the stick which was kept on the loft. Thus, these two places where the articles were concealed were in exclusive knowledge of the appellant. In that behalf, it would be useful to refer to paragraph No. 1847 of reported judgment in the case of Yakub Abdul Rajjak Memon..vs.. State of Mah. through C.B.I. Bombay, reported in MANU/SC/0268/2013 : (2013) 13 SCC 1, as under:--

"1847. Undoubtedly, the appellant's disclosure statement had been made before the police, as well as the panch witness. The fact that he did not disclose the place where the contraband had been hidden remains entirely insignificant, for the reasons that he had led the police party to the said place, and that the said recovery had been made at his behest. The open space from where the recovery had been made though was accessible to anybody, it must be remembered that the contraband had been hidden, and that it was only after digging was done at the place shown by the appellant, that such recovery was made. Hence, it would have been impossible for a normal person having access to the said place, to know where the contraband goods were hidden."

Therefore, in our view, the place from where the stick and gold articles were seized is a place which was in exclusive knowledge of the appellant alone.

We see no merit in the submissions on behalf of the appellant that those articles were planted by the Investigating Officer, because though opportunity was available to appellant's mother no complaint was filed with the higher-ups of Investigating Officer. Further, in absence of anything on record, there was no reason for Investigating Officer to plant these articles.

30. The learned counsel for the appellant has also submitted that there was no test identification of the seized ornaments during the investigation. During their evidence, PW 1 Harvindarsing Marwa and PW 8 Harjitsingh Marwa, the brother and the father of the deceased, respectively, identified those gold ornaments which deceased Goldi used to wear. Identification of those ornaments before the Court is a substantive piece of evidence. These witnesses were familiar with the ornaments of the deceased and therefore, it is quite natural for them to identify those articles. Though the ornaments were seized from the possession of the appellant, he failed to claim those ornaments to be of his own. Once it is established that the ornaments which were recovered at the instance of the appellant were of the deceased and since those ornaments were found in possession of the appellant soon after the death of Goldi, presumption under Section 114, illustration (a) of the Evidence Act can be raised against him.

31. In the prosecution case, we have another piece of evidence in the nature of testimony of Murlidhar Sonkusare (PW 13). This prosecution witness is an Scientific Assistant in Forensic Science Laboratory, Nagpur. His evidence shows that whenever the scientific assistance is required to police, he used to go to the spot for scientific investigation along with scientific kit containing preliminary test solutions. His evidence further shows that on 25th of August, 2011 Police Station Gittikhadan issued a requisition letter to Forensic Laboratory for scientific assistance and accordingly Assistant Director, R.F.C.L. Shri Gorale directed this prosecution witness to accompany the police to the spot. Accordingly, he along with his Scientific Assistant Shri Gadge and Laboratory Attendant Shri Uike had been to the house of the appellant at Chalks Coloney, with Police. They were taken there by Uday Soyaskar (PW 15), a PSI. According to the evidence of Murlidhar Sonkusare (PW 13), he and his team noticed faint blood stains on the wall of first room near the door. Those were taken by scrapping the wall, for test. Also, they took the scrap of blood stains which they noticed on the wall of the second room and also in toilet and the latrine. According to his evidence, he tested those samples by applying phenolphthalein solution and hydrogen peroxide on the slide and he received positive reaction of the sample, like blood. His evidence shows that the samples were handed over to the police and this process was duly photographed.

The evidence of this prosecution witness is seriously challenged by the learned counsel for the appellant that there is no panchanama available on record of this proceeding. True it is that there is no panchanama on record. Preparation of the panchanama was not the job of this scientific personnel. It was the job of the investigating agency, the Police. Soyaskar (PW 15), P.S.I. gives explanation that he cannot assign any reason as to why he has not prepared any panchanama. Thus, it will be a lapse on the part of the investigating machinery. Even, it could be turned as a major lapse. The question is whether in view of this lapse on the part of the police, the evidence of the scientific personnel and his effort to substantiate the prosecution case should be thrown in dust-bin? In our view, the answer is ' no'.

The Apex Court in Karnel Singh..vs.. State of Madhya Pradesh, reported in MANU/SC/0497/1995 : 1995 CRI.L.J. 4173 has ruled that in cases of the defective investigation the Court has to circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing in to the hands of the Investigating Officer if the investigation is designedly defective. The same view is reiterated by the Apex Court in the authoritative pronouncement reported in MANU/SC/0203/2004 : 2004 CRI.L.J. 1807 (Dhanaj Singh @ Shera and ors...vs.. State of Punjab).

The same will also apply while dealing to the submissions of learned counsel that Police Inspector Bahadure (PW 18) kept the Muddemal articles in the cupboard of his Chamber for considerable time before depositing it to Malkhana.

Even if the explanation given by Investigating Officer in his evidence is not accepted, still nothing turn on it. As observed in preceding paras, when the articles seized under Exh. 70 were taken to Chemical Analyzer, those were in sealed condition. There was no tampering with those sealings. Therefore, on the law laid down by Apex Court in aforementioned cases, the lapses on the part of Investigating Officer did not render this prosecution case worthless, especially when seizure, sealing are duly proved and scientific evidence shows blood of deceased on these Muddemal which was seized from the house of appellant.

The C.A. report (Exh. 7) shows that the scrapping wrapped in the papers labelled C/1 to C/6, which were taken out by the Chemical Analyzer, show that there exists human blood of 'B' Group.

32. According to the learned counsel for the appellant, the scrapping handed over by the scientific team to the Investigating Officer were not duly sealed when the scrapping were taken from the house of the appellant and also from the foot-rest of the Moped. In our view, the learned Judge of the Court below has rightly rejected the Chemical Analyzer's report to the extent of those scrapping collected by the scientific team. The C.A. report is always used as a corroborative piece of evidence. Even C.A. report to that extent is kept aside still it is established on record by Shri Murlidhar Sonkusare (PW 13) that the scientific team visited the house of the appellant and they took scrapping from the wall and after the test they noticed that it was a human blood, and appellant has failed to offer any plausible explanation.

33. The prosecution has examined Radha Paraye (PW 6). This prosecution witness at the relevant time was working as a maid servant in the house of the appellant. Her evidence shows that when she visited the house of the appellant as usual at 11 O'clock in the morning she found some odor was coming. Her evidence also shows that she has seen blood stains on the wall of the house of the appellant. It is her evidence that acquitted accused gave her kerosene and accordingly she cleaned the house with the mop. Her evidence further shows that, however, she has not cleaned blood stains on the wall. There is no challenge to her version that she cleaned the house with mop. What is important is the timing. She entered the house at 11 O'clock in the morning and at that time she noticed blood stains on the wall of the house of the appellant and whereas Exh. 70 was drawn on the very same day between 16.10 and 18.05 hrs. The evidence of this prosecution witness clearly shows about the existence of blood stains on the wall and her evidence shows that the blood was cleaned by mopping which were there on the floor.

MOTIVE:--

34. A feeble attempt was made on the part of the learned counsel for the appellant that the prosecution has utterly failed to show that there exists any motive and at any rate his submission is that there is no sufficient evidence to prove the motive.

35. Motive is one of the circumstances in the prosecution case based on the circumstantial evidence. A accused may not exhibit his motive to anybody prior to the commission of an offence. It is not possible that every time the prosecution will have the evidence to show that a accused was having any motive to commit an offence.

36. Every time the prosecution is not obliged to establish the motive or the adequacy of the motive in commission of a given offence. It is enough if some motive is established which indicates that it would be the accused who is interested in doing away the victim is sufficient, is the principal of Law, as noticed by this Court in Surendra S. Sund..vs.. State of Mah., reported in 1986(1) Crime, Pg.94.

It is an admitted position that Indarjitsingh Marwa (PW 8) let out his house to appellant which is situated at Chalks Colony, Nagpur. Exh. 37 is an Agreement of Rent executed in favour of Indarjitsingh Marwa (PW 8) by the appellant and his father Harteksingh Saund. The said document was executed on 27th of November, 2010. As per the said rent note, the agreed rent was Rs. 3900/-. The execution of document (Exh. 37) and the rent of Rs. 3900/- and its payment to be made in between 21st to 25th of every month, is admitted by the appellant during his examination by the Court below under Section 313 of the Code of Criminal Procedure.

37. According to the learned counsel for the appellant, there was no reason for deceased Goldi to visit the house of the appellant on 23rd of August, 2011. According to the evidence of PW 1 Harvindar Marwa, which is duly corroborated by Indarjitsingh Marwa (PW 8), the appellant had made regular payment of rent for initial period of 3 to 4 months and thereafter rent was not paid. Their evidence also shows that it is the deceased who used to go to the house of the appellant for demanding the rent. This part of evidence of these two prosecution witnesses is questioned by the learned counsel for the appellant in view of the recitals in Exh. 37 that it was the duty of the tenant to pay the rent regularly. There is nothing available on record to show that the appellant was not in arrears of the rent. Much of the cross-examination of Indarjitsingh is devoted on the aspect that he has not taken any legal action against the appellant for recovery of the rent. However, through his cross-examination itself it is brought on record that rent was paid up to March, 2011. The incident in question has occurred in the month of August, 2011. Thus, from April, 2011 to August, 2011, the rent was accumulated. The evidence of these two prosecution witnesses that rent was not paid by the appellant cannot be faulted merely because proceedings for recovery of rent were not initiated. Agreement of Rent (Exh. 37) shows that the period of rent note was of eleven months therefore, much importance cannot be attached to the aspect of non-filing of civil proceedings for recovery of the rent.

The evidence of first informant, brother, and father of the deceased shows that after the working hours Goldi used to visit Chalks Colony to meet his old friends there. Even this aspect is having due corroboration from the independent witnesses PW 3 Mukesh, PW 4 Honey and even from the evidence of PW 5 Simratpalsingh Sabarwal. Thus, the visit to Chalks Colony by Goldi after his duty hours, in our view, is established. According to the evidence of PW 1, the brother of deceased Goldi and his father Indarjitsingh (PW 8), Goldi used to collect the rent from the appellant. According to the learned counsel for the appellant, this aspect is an omission from the First Information Report and also police statement of Indarjitsingh (PW 8).

Once it is established that the deceased Goldi daily used to visit Chalks Colony to meet his friends, after his duty hours were over, the collection of rent by him from the appellant cannot be doubted and the evidence in that behalf cannot be discarded merely because it was not stated at the time of recording the police statement of Indarjitsingh Marwa (PW 8). Similarly, evidence of Indarjitsingh cannot be faulted with since the appellant was not regular in making payment of rent, deceased Goldi was of opinion that appellant should vacate the house. Through the evidence of these two witnesses it is clear that the appellant was in arrears of rent for about 4 to 5 months.

38. According to the evidence of Harvindar Marwa (PW 1) and Indarjitsingh Marwa (PW 8), deceased used to wear gold ornaments on his person. Even, it is their evidence that on the day of the incident the gold ornaments were on the person of Goldi when he left the house.

At the time of lodging of the First Information Report, the first informant in his report (Exh. 44) has specifically stated that when he noticed the dead body of his brother, two gold chains with three lockets, a gold bracelet and two gold rings were not found on the dead body. According to the First Information Report, the weight of these gold ornaments were approximately 16 tolas. Thus, at the first available opportunity, the first informant has brought to the notice of the Investigating Officer about not finding 16 Tolas of gold which deceased used to wear on his person, were removed from his body.

Evidence of Dinesh Mohanti (PW 2), a panch witness to the spot panchanama (Exh. 41) also does not show that he noticed any gold ornament on the dead body. Exh. 47 is also absent in that behalf.

Non-payment of rent and the gold ornaments which were ultimately found to be in possession of the appellant, in our view, could be treated as a motive for commission of the offence.

39. On re-appreciation of the prosecution case and on the basis of the evidence which is established on record by the prosecution, we noticed following circumstances which complete the chain:--

"1. Deceased was suffering from post-polio paralysis and he used to walk with the help of his both hands.

2. For moving in society, a Scooty bearing Registration No. MH-31/DJ-2299 was purchased for the deceased with additional accessories of two more wheels.

3. Initially, the deceased and his family members used to reside at Chalks Colony in their own house.

4. The family of the deceased shifted to apartment at Lashkaribag for want of additional accommodation at Chalks Coloney.

5. The house at Chalks Coloney was rented out to the appellant by executing a rent note (Exh. 37) and the rent was Rs. 3900/- per month.

6. The deceased used to collect rent from the appellant.

7. The appellant did not pay the rent from March, 2011.

8. Deceased was working with Marwa Transport Company at Gandhinagar. He used to leave his home for his work place from 9.30 a.m. and used to return to the home by 7.30 on his special wheel-designed vehicle.

9. That, while returning to the house from the work place, the deceased used to visit Chalks Coloney firstly, and used to have a chitchat with his friends and then used to return to the house.

10. On 23rd of August, 2011, in the morning, the deceased left his house as usual for his work place, however, failed to return to the house.

11. PW 1 Harvindar Marwa and PW 8 Indarjitsingh Marwa and his other relatives made search of Goldi but without any success. However, they noticed the Moped, which deceased used to ply, parked near the house of the appellant. The said fact is admitted by the appellant in his statement recorded under Section 313 of the Code of Criminal Procedure.

12. While making search PW 1 Harvindar Marwa and others also had gone to the house of the appellant, the door of the house of the appellant was close from inside and inspite of knocking was given on the door and also the calls were given, the door was not opened by the appellant.

13. On 24th of August, 2011 at 6 O'clock when parents of the deceased had been to the house of the appellant for enquiry, that time the appellant disclosed to them that on 23rd of August, 2011 at 8 O'clock the deceased had been to his house and when the tea was offered, he refused and left away.

14. After leaving the house of the appellant, as claimed by the appellant, nobody has seen the deceased alive anywhere.

15. On 24th of August, 2011 at 7.30 a.m. unknown person gave telephonic intimation in respect of lying of one bag containing something in between Gorewada Ring Road to Katol Naka Chowk.

16. Police visited the said spot and found the dead body of a person inside the said cotton bag of blue colour which was tied by a lace.

17. A Cell phone was found in the pocket of the pant of the deceased.

18. The police-party gave phone call to the relatives of the deceased on the basis of said Cell phone.

19. The dead body was identified by PW 1 Harvindar Marwa and PW 8 Indarjitsingh Marwa as of Goldi.

20. A First Information Report (Exh. 44) was lodged against the unknown person in which a fact is mentioned about the noticing of the vehicle of the deceased in the Chalks Coloney.

21. On getting the aforesaid lead about the last location of the vehicle PW 18, the Investigating Officer, visited Chalks Coloney and made enquiries. During enquiry Mukesh Pachpulkar (PW 3) and Honey Shimpi (PW 4) revealed that on 23rd of August, 2011 at 9 p.m. they saw the appellant going on his Moped carrying a bundle (Gathode) on the foot panel of the vehicle when these two witnesses were sitting on Ota.

22. After recording their statements, Investigating Officer called panch witness PW 7 Solomen Chandekar and decided to take search of the house of the appellant.

23. In presence of the appellant, the house was searched by the Investigating Officer in presence of panchas. There, they noticed blood stains on various articles. House search panchanama (Exh. 70) was drawn and articles were seized and sealed.

24. In the evening, on 24th of August, 2011, the appellant was arrested.

25. During the interrogation, he gave disclosure statements leading to the recoveries of the vehicle from a secluded place and also the weapon and the ornaments of gold, which were established to be worn by deceased, from his house in presence of panch witnesses.

26. On 25th of August, 2011, the scientific team of Chemical Analyzer Laboratory also visited the house of the appellant and they noticed the faint blood stains on the walls.

27. Radha Paraye (PW 6), the maid servant, also affirms that there were blood stains on the wall of the house of appellant.

28. During search, empty liquor bottles were seized from the house of the appellant.

29. The muddemal articles were sent to the Chemical Analyzer.

30. According to the Chemical Analyzer report, the blood group of deceased was 'B'.

31. The articles which were seized on 24th of August, 2011, under Exh. 70 which were sent to the Chemical Analyzer, were found to be having human blood of group 'B'.

32. The viscera of deceased contains alcohol."

40. The facts so established, in our view, complete the chain and in our considered view, the prosecution has fully established its case against the appellant beyond reasonable doubt. Further, the learned Judge of the Court below has also considered each and every aspect of the prosecution case in its correct perspective. The upshot of the aforesaid discussion leads us to pass the following order.